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Coronavirus: UK Job Retention Scheme – previously excluded employees now in scope to be furloughed

Summary

Key points arising out of the revised guidance and the legislative framework include:

1. Eligibility cut-off date extended from 28 February to 19 March: This is the most significant change to the UK Coronavirus Job Retention Scheme (CJRS) guidance. It brings into scope many new recruits who previously could not be furloughed. Earlier versions of the guidance said that new recruits who joined after 28 February were excluded from the scheme. However, the latest guidance now says that individuals put on the employer’s payroll on or before 19 March, and in respect of whom the employer has also made an RTI submission to HMRC on or before 19 March, can be furloughed.

It may well be that employers have already taken action to terminate new recruits who, according to previous versions of the guidance couldn’t be furloughed. Employers still have the option to rehire these individuals and then furlough them, if they wish to do so.

2. Requirement for employer/employee agreement: the legislative underpin for the CJRS (the ‘CJRS Direction’) has now also been published and says that to be furloughed, the employer and employee must agree in writing that the employee will cease all work. This conflicts with the guidance, where the employer only has to confirm in writing that the employee has been furloughed, not that the employee has agreed to cease working. The best evidence of employee agreement is express confirmation from the employee that they agree to the furlough letter terms (which include the

U.S. COVID-19: My Employee Has COVID-19 – What Leave Entitlements Apply?

The call to HR is becoming more common:  I have COVID-19. Should I go on a leave of absence, and if so, will I be paid while I am out?

It is clear that an employee who has tested positive for COVID-19 (or who is likely positive based on symptoms and/or exposure) should remain away from the workplace so as to avoid spreading the disease.  What can sometimes be less clear is what leave entitlements apply to the employee, and whether the employee will be paid for all or some portion of the leave.  When faced with these questions, employers should consider the following:

Leave Entitlements Under Federal Law

For employers covered by the new Families First Coronavirus Response Act (“FFCRA”), an eligible employee may be entitled to up to 80 hours of Paid Sick Leave, if the employee is unable to work (including telework) due to either:

  • Having COVID-19 and being advised by a healthcare professional to self-quarantine; or
  • Having symptoms of COVID-19 and seeking a diagnosis from a healthcare professional.

Importantly, this leave is both job-protected and paid (subject to caps, although employers may permit employees to supplement these wages with other available accrued paid leave).  Of course, some employees who have COVID-19 are asymptomatic or have only mild symptoms and are able to keep working (remotely).  In these cases, the FFCRA does not apply.  Click here for our latest blog posts on the FFCRA.

The federal Family and Medical Leave Act (“FMLA”) may

Preparing to Return U.S. Employees to the Workplace

As we approach the one month anniversary of the first “stay-at-home” orders, many are asking when we can get back to work and what will it look like when we do?  In response, companies are beginning to consider the logistics of returning employees to the workplace.  Just as the “stay-at-home” orders vary widely from state to state, any regulatory return to work orders issued by the states, or any guidance issued by any federal agencies, will likely vary widely as well. Employers with multiple locations may again find themselves juggling different requirements in different facilities, with no single approach fitting an entire multi-location business.

Though “stay-at-home” states have not yet issued guidance on how or when they will allow non-essential businesses to begin operating again, such a return could commence at any time.  In order to assist companies with preparing in the absence of regulatory guidance, we have developed the following suggestions for employers’ consideration as they plan to return employees to the workplace and seek to be positioned to do so, when permissible, as efficiently and quickly as possible:

  • Be prepared to comply with the CDC’s Guidelines in effect at the time of a return to work. For current example, employers should ensure they have sufficient handwashing stations and supplies, tissue disposal options and appropriate postings regarding sanitation and hygiene.
  • Consider improved infection control/sanitization practices for high-touch areas such as equipment, machinery, restrooms and breakrooms, and sanitization materials for workers and visitors.
  • It is likely that in every

U.S. COVID-19: Workplace Temperature Screening: How To Develop and Implement A Screening Protocol

The notion that U.S. employers would engage in broad-scale temperature screening of employees would have once been essentially unthinkable.  But the realities of COVID-19 are changing the workplace, as least for the time-being.  With the encouragement of the Centers for Disease Control and Prevention (“CDC”) and some state and local governments, and in light of the blessing of the Equal Employment Opportunity Commission (“EEOC”), more employers are now considering the implementation of daily temperature screening[1] before employees enter the workplace.

In Part 1 of our two-part series on temperature screening, we addressed the question of whether employers may (or must) implement a temperature screening protocol.  Here, in Part 2, we address the question of how to implement such a protocol, i.e. what procedures for temperature screening in the workplace should employers implement? Below are a number of issues for employers to consider:

  • Decide who will be screened. Some employers are screening only critical infrastructure workers who were or may have been exposed to a person suspected or confirmed to have COVID-19.  Other employers are screening all employees, and often are also screening any contract workers and visitors who enter the workplace, unless doing so would be virtually impossible (e.g., a grocery store screening all customers).  Although deciding who will be screened is essentially a business decision, at all times, employers must ensure that employees are selected for screening on a nondiscriminatory basis.
  • Decide who will do the screening. The options for who will do the screening range
  • U.S. COVID-19: Employee Temperature Screening: What Employers Need To Consider When Deciding Whether To Implement a Screening Process

    In light of concerns about the spread of the novel coronavirus in the workplace, employers are confronting important questions pertaining to the screening of employees for COVID-19 symptoms, including as it pertains to taking employees’ temperatures: May (or must) we screen employees for fevers, and if so, how should we implement such a practice?

    In Part 1 of this two-part blog series, we address issues relating to the decision of whether employers may (or must) implement a temperature screening protocol.  In Part 2, we will provide guidance on how to do so.

    Non-Discriminatory Temperature Screening Is Permitted

    Taking an employee’s temperature is considered a medical exam under the Americans with Disabilities Act (“ADA”) and would normally be subject to strict restrictions. However, the federal Equal Employment Opportunity Commission (“EEOC”) has expressly stated in updated guidance that employers are permitted to screen employees for fevers due to the COVID-19 pandemic.  Some state agencies are following suit; for example, the California Department of Fair Employment and Housing recently issued guidance indicating that temperature checks are permissible and non-discriminatory under the present circumstances, so long as they are conducted on all personnel entering a facility.

    Federal Guidance Supports Temperature Screening In Certain Circumstances

    At the federal level, the Centers for Disease Control and Prevention (“CDC”) has advised all employers to consider “community level spread” of COVID-19 when determining appropriate workplace precautions, stating that workplaces in communities with minimal to moderate community spreading should, among other things, “[c]onsider regular health

    Nationwide Implications of CDC and NJ Updated Workplace Requirements

    Recent state and federal developments are a reminder that the COVID-19 landscape is continually changing and demonstrate that businesses must remain alert and nimble as they address rapidly evolving mandates from both the federal and state sectors in the COVID-19 environment. Specifically, in the last week: (1) the Centers for Disease Control (“CDC”) issued interim guidance1 for critical infrastructure workers; and (2) an April 8, 2020 the Governor of New Jersey signed a new Executive Order2 expanding the state’s Stay-at-Home restrictions.

    Businesses that continue to operate under Stay-at-Home orders can expect evolving requirements intended to keep workplaces safe. The New Jersey order is an example of just one state with recent changes; however, it is not alone. Many states are modifying their orders or issuing new guidance as the nation continues to learn more about COVID-19 and as the business community tries to understand and adjust to the orders. One of the biggest challenges is that there is no one source from which updated requirements for businesses might come. New requirements may be issued by state or local health departments, state or local executive orders, and federal agencies. These two most recent developments underscore the importance of continued monitoring to ensure businesses remain aware of the rapidly changing environment.

    Below are just some of the details of these recent requirements:

    CDC Interim Guidance:

    • Under the previous guidance, all workers, even those in the critical infrastructure sectors, were advised to leave work and “self-quarantine” for 14 days if exposed to someone with

    CORONAVIRUS RELIEF BILL: The CARES Act – Provisions Affecting U.S. Employers and Employees, Part II

    The Coronavirus Aid, Relief, and Economic Security Act (“CARES Act” or “Act”), enacted on March 27, 2020, has been the subject of government agency interim regulations and guidance.  This updates the original BCLP post on the employment-related provisions of the CARES Act through April 7, 2020.

    The CARES Act represents the third Phase of Congressional relief responding to the novel coronavirus (COVID-19) pandemic.  Phase I (Coronavirus Preparedness and Response Supplemental Appropriations Act, 2020 (P.L. 116-123)) and Phase II (Families First Coronavirus Response Act (P.L. 116-127)) were signed into law on March 6 and 18, respectively.   At 883 pages, the CARES Act is the largest relief bill in U.S. history and addresses on multiple fronts the hardships faced by individuals and businesses throughout this crisis.  These efforts include an unprecedented expansion of unemployment benefits, significant funding for the health care industry, aid to large and small businesses valued in the billions, and even direct payments to individuals.

    The majority of economic relief provisions for U.S. workers and employers is provided in Titles I through IV of Division A of the Act (Division B consists of emergency appropriations to fund various program). The CARES Act also has specific provisions regarding relief for airlines, financial institutions, and other sectors that are considered critical to national security.  The three key employment-related sections of the CARES Act, two of which are designed to incentivize employers to retain employees and continue to provide them wages by way of either providing smaller employers with loans, or

    CORONAVIRUS RELIEF BILL: The CARES Act – Provisions Affecting U.S. Employers and Employees, Part I

    The Coronavirus Aid, Relief, and Economic Security Act (“CARES Act” or “Act”), enacted on March 27, 2020, has been the subject of government agency interim regulations and guidance.  This updates the original BCLP post on the employment-related provisions of the CARES Act through April 7, 2020.

    The CARES Act represents the third Phase of Congressional relief responding to the novel coronavirus (COVID-19) pandemic.  Phase I (Coronavirus Preparedness and Response Supplemental Appropriations Act, 2020 (P.L. 116-123)) and Phase II (Families First Coronavirus Response Act (P.L. 116-127)) were signed into law on March 6 and 18, respectively.   At 883 pages, the CARES Act is the largest relief bill in U.S. history and addresses on multiple fronts the hardships faced by individuals and businesses throughout this crisis.  These efforts include an unprecedented expansion of unemployment benefits, significant funding for the health care industry, aid to large and small businesses valued in the billions, and even direct payments to individuals.

    The majority of economic relief provisions for U.S. workers and employers is provided in Titles I through IV of Division A of the Act (Division B consists of emergency appropriations to fund various program). The CARES Act also has specific provisions regarding relief for airlines, financial institutions, and other sectors that are considered critical to national security.  The three key employment-related sections of the CARES Act, two of which are designed to incentivize employers to retain employees and continue to provide them wages by way of either providing smaller employers with loans, or

    CARES Act article from BCLP Benefits Blog

    CARES Act article from BCLP Benefits Blog

    April 8, 2020

    Authored by: BCLP at Work

    Our Employee Benefits and Executive Compensation colleagues have recently drafted an article on how the CARES Act limits executive compensation for U.S. businesses participating in CESA relief . Please click here for the full article: https://benefitsbclp.com/covid-19-cares-act-limits-executive-compensation-for-u-s-businesses-participating-in-cesa-relief/.

     

    U.S. COVID-19: DOL (Yet Again) Publishes Revised Guidance on the Families First Coronavirus Response Act

    This weekend, the Department of Labor (“DOL”) released yet another set of updated and revised Questions and Answers (“Q&A”) regarding the Families First Coronavirus Response Act (“FFCRA”).  This updated informal guidance comes just days after the DOL published its formal Temporary Rules (“Rules”) interpreting the FFRCA.  As we’ve summarized in earlier posts, the FFCRA was signed into law on March 18, 2020 and generally requires U.S. employers with fewer than 500 employees to provide paid sick leave (“Paid Sick Leave”) and emergency family and medical leave (“Emergency FMLA Leave”) benefits to employees in connection with COVID-19.

    The FFCRA’s Paid Sick Leave and Emergency FMLA Leave provisions became effective on April 1, 2020; however, as the DOL previously announced, to enable covered employers to come into compliance with the new law, the DOL will observe a temporary period of non-enforcement through April 17, 2020.  This temporary period of non-enforcement only applies if an employer makes a reasonable, good faith attempt to comply with the FFCRA.  As such, if they have not already, employers should take steps to comply with the FFCRA immediately, and should continue to monitor and incorporate guidance from the DOL into their policies and practices.

    Below is a summary of new or revised guidance outlined in the updated Q&A (that was not previously summarized in our earlier posts) that employers should consider as they comply with the FFCRA.  Links to our posts summarizing the earlier guidance are available here.

    Revised Q&A Guidance

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